LRB-5092/1
MLJ&EAW:emw
2017 - 2018 LEGISLATURE
January 16, 2018 - Introduced by Law Revision Committee. Referred to Committee
on Rules.
AB839,1,8 1An Act to amend 809.30 (2) (d), 885.10, 938.32 (5) (title), 977.02 (3) (intro.),
2977.05 (4) (g), 977.05 (4) (gm), 977.05 (4) (h), 977.06 (1) (d), 977.06 (2) (a), 977.06
3(2) (am), 977.07 (1) (a), 977.07 (1) (c) and 977.07 (2m) of the statutes; relating
4to:
the determination of indigency prior to the state public defender appointing
5an attorney to represent a parent in a proceeding under chapters 48 and 938,
6the description of defendant indigency for public defender fees, and recusal
7from juvenile justice proceedings (suggested as remedial legislation by the
8State Public Defender).
Analysis by the Legislative Reference Bureau
Under current law, the state public defender is required to appoint counsel to
a person entitled to representation under the Children's Code or the Juvenile Justice
Code without first determining whether the person is indigent and therefore eligible
for such an appointment. Under current law, indigency can be determined in these
cases after the eligible person is appointed an attorney. This bill specifies that a
determination of indigency is not required before the state public defender may
appoint an attorney to represent a child in a proceeding under the Children's Code
or the Juvenile Justice Code.
The bill also amends the statutes that describe the procedure for collecting
attorney fees for defendants who have been determined to be indigent. It removes

the words “in part” from the description of indigency because defendants can be
found to be only indigent or not indigent, they cannot be found to be indigent “in
part.”
In addition, the bill amends the title of a statutory section that addresses when
a judge must recuse himself or herself from further juvenile justice proceedings from
“refusal” to “recusal,” which is a more accurate legal description of the process.
For further information, see the Notes provided by the Law Revision
Committee of the Joint Legislative Council.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
Law Revision Committee prefatory note: This bill is a remedial legislation
proposal, requested by the State Public Defender and introduced by the Law Revision
Committee under s. 13.83 (1) (c) 4. and 5., stats. After careful consideration of the various
provisions of the bill, the Law Revision Committee has determined that this bill makes
minor substantive changes in the statutes, and that these changes are desirable as a
matter of public policy.
AB839,1 1Section 1 . 809.30 (2) (d) of the statutes is amended to read:
AB839,2,112 809.30 (2) (d) Indigency redetermination. Except as provided in this
3paragraph, whenever a person whose trial counsel is appointed by the state public
4defender files a notice under par. (b) requesting public defender representation for
5purposes of postconviction or postdisposition relief, the prosecutor may, within 5
6days after the notice is served and filed, file in the circuit court and serve upon the
7state public defender a request that the person's indigency be redetermined before
8counsel is appointed or transcripts are requested. This paragraph does not apply to
9a child who is entitled to be represented by counsel under s. 48.23 or 938.23 or a
10person who is entitled to be represented by counsel under s. 48.23, 51.60 (1), or
1155.105, or 938.23.
Note: Sections 1, 4, 6, 7, 9, 10, 11, and 12 clarify that “a child,” rather than “a
person,” is entitled to be represented by counsel under s. 48.23, stats., or s. 938.23, stats.,
without first having a determination of indigency.
AB839,2 12Section 2 . 885.10 of the statutes is amended to read:
AB839,3,12
1885.10 Witness for indigent respondent or defendant. Upon satisfactory
2proof of the financial inability of the respondent or defendant to procure the
3attendance of witnesses for his or her defense, the judge or supplemental court
4commissioner, in any paternity proceeding or criminal action or proceeding, or in any
5other case in which the respondent or defendant is represented by the state public
6defender or by assigned counsel under s. 977.08, to be tried or heard before him or
7her, may direct the witnesses to be subpoenaed as he or she determines is proper and
8necessary, upon the respondent's or defendant's oath or affidavit or that of the
9respondent's or defendant's attorney. Witnesses so subpoenaed shall be paid their
10fees in the manner that witnesses for the state therein are paid. Determination of
11indigency, in full or in part, under s. 977.07 is proof of the respondent's or defendant's
12financial inability to procure the attendance of witnesses for his or her defense.
Note: Sections 2, 5, 8, and 13 delete references to a determination that a person
is indigent “in part,” as a person can only be found indigent or not indigent.
AB839,3 13Section 3 . 938.32 (5) (title) of the statutes is amended to read:
AB839,3,1414 938.32 (5) (title) Refusal Recusal from subsequent proceedings.
Note: Section 3 amends the title of the subsection without making substantive
changes to the statutory language.
AB839,4 15Section 4 . 977.02 (3) (intro.) of the statutes is amended to read:
AB839,4,216 977.02 (3) (intro.) Promulgate rules regarding the determination of indigency
17of persons entitled to be represented by counsel, other than children who are entitled
18to be represented by counsel under s. 48.23 or 938.23 or
persons who are entitled to
19be represented by counsel under s. 48.23, 51.60 , or 55.105, or 938.23, including the
20time period in which the determination must be made and the criteria to be used to
21determine indigency and partial indigency. The rules shall specify that, in

1determining indigency, the representative of the state public defender shall do all of
2the following:
AB839,5 3Section 5 . 977.05 (4) (g) of the statutes is amended to read:
AB839,4,104 977.05 (4) (g) In accordance with the standards under pars. (h) and (j), accept
5referrals from judges, courts or appropriate state agencies for the determination of
6indigency of persons who claim or appear to be indigent. If a referral is accepted and
7if the person is determined to be indigent in full or in part, the state public defender
8shall appoint counsel in accordance with contracts and policies of the board, and
9inform the referring judge, court or agency of the name and address of the specific
10attorney who has been assigned to the case.
AB839,6 11Section 6 . 977.05 (4) (gm) of the statutes is amended to read:
AB839,4,1812 977.05 (4) (gm) In accordance with the standards under pars. (h) and (i), accept
13referrals from judges and courts for the provision of legal services without a
14determination of indigency of children who are entitled to be represented by counsel
15under s. 48.23 or 938.23 or
persons who are entitled to be represented by counsel
16under s. 48.23, 51.60, or 55.105, or 938.23, appoint counsel in accordance with
17contracts and policies of the board, and inform the referring judge or court of the
18name and address of the specific attorney who has been assigned to the case.
AB839,7 19Section 7 . 977.05 (4) (h) of the statutes is amended to read:
AB839,5,220 977.05 (4) (h) Accept requests for legal services from children who are entitled
21to be represented by counsel under s. 48.23 or 938.23 or
persons who are entitled to
22be represented by counsel under s. 48.23, 51.60 , or 55.105, or 938.23 and from
23indigent persons who are entitled to be represented by counsel under s. 967.06 or who
24are otherwise so entitled under the constitution or laws of the United States or this

1state and provide such persons with legal services when, in the discretion of the state
2public defender, such provision of legal services is appropriate.
AB839,8 3Section 8 . 977.06 (1) (d) of the statutes is amended to read:
AB839,5,64 977.06 (1) (d) Collect for the cost of representation from persons who are
5indigent in part or who have been otherwise determined to be able to reimburse the
6state public defender for the cost of providing counsel.
AB839,9 7Section 9 . 977.06 (2) (a) of the statutes is amended to read:
AB839,5,178 977.06 (2) (a) A person seeking to have counsel assigned for him or her under
9s. 977.08, other than a child who is entitled to be represented by counsel under s.
1048.23 or 938.23 or
a person who is entitled to be represented by counsel under s.
1148.23, 51.60, or 55.105, or 938.23, shall sign a statement declaring that he or she has
12not disposed of any assets for the purpose of qualifying for that assignment of
13counsel. If the representative or authority making the indigency determination
14finds that any asset was disposed of for less than its fair market value for the purpose
15of obtaining that assignment of counsel, the asset shall be counted under rules
16promulgated under s. 977.02 (3) at its fair market value at the time it was disposed
17of, minus the amount of compensation received for the asset.
AB839,10 18Section 10 . 977.06 (2) (am) of the statutes is amended to read:
AB839,5,2519 977.06 (2) (am) A person seeking to have counsel assigned for him or her under
20s. 977.08, other than a child who is entitled to be represented by counsel under s.
2148.23 or 938.23 or
a person who is entitled to be represented by counsel under s.
2248.23, 51.60, or 55.105, or 938.23, shall sign a statement declaring that the
23information that he or she has given to determine eligibility for assignment of
24counsel he or she believes to be true and that he or she is informed that he or she is
25subject to the penalty under par. (b).
AB839,11
1Section 11. 977.07 (1) (a) of the statutes is amended to read:
AB839,6,72 977.07 (1) (a) Determination of indigency for persons entitled to counsel shall
3be made as soon as possible and shall be in accordance with the rules promulgated
4by the board under s. 977.02 (3) and the system established under s. 977.06. No
5determination of indigency is required for a child who is entitled to be represented
6by counsel under s. 48.23 or 938.23 or
a person who is entitled to be represented by
7counsel under s. 48.23, 51.60, or 55.105, or 938.23.
AB839,12 8Section 12 . 977.07 (1) (c) of the statutes is amended to read:
AB839,6,209 977.07 (1) (c) For all referrals made under ss. 809.107, 809.30, 974.06 (3) (b)
10and 974.07 (11), except a referral of a child who is entitled to be represented by
11counsel under s. 48.23 or 938.23 or
a person who is entitled to be represented by
12counsel under s. 48.23, 51.60, or 55.105, or 938.23, a representative of the state public
13defender shall determine indigency. For referrals made under ss. 809.107, 809.30
14and 974.06 (3) (b), except a referral of a child who is entitled to be represented by
15counsel under s. 48.23 or 938.23 or
a person who is entitled to be represented by
16counsel under s. 48.23, 51.60, or 55.105, or 938.23, the representative of the state
17public defender may, unless a request for redetermination has been filed under s.
18809.30 (2) (d) or the person's request for representation states that his or her
19financial circumstances have materially improved, rely upon a determination of
20indigency made for purposes of trial representation under this section.
AB839,13 21Section 13 . 977.07 (2m) of the statutes is amended to read:
AB839,7,722 977.07 (2m) If the person is found to be indigent in full or in part, the person
23shall be promptly informed of the state's right to payment or recoupment under s.
2448.275 (2), 757.66, 938.275 (2), 973.06 (1) (e), or 977.076 (1), and the possibility that
25the payment of attorney fees may be made a condition of probation, should the person

1be placed on probation. Furthermore, if found to be indigent in part, the person shall
2be promptly informed of the extent to which he or she will be expected to pay for
3counsel, and whether the payment shall be in the form of a lump sum payment or
4periodic payments. The person shall be informed that the payment amount may be
5adjusted if his or her financial circumstances change by the time of sentencing. The
6payment and payment schedule shall be set forth in writing. This subsection does
7not apply to persons who have paid under s. 977.075 (3m).
AB839,7,88 (End)
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